A recent CBC News story cited that chronic pain impacts one in five Canadians. That’s a helluva a lot of Canadians who have to deal with chronic pain. In case you’re wondering, “helluva” is NOT a legal term.
Are you suffering from chronic pain? Do you know what it’s like to live day after day with a pain that won’t subside. Do you know what it’s like to deal with pain that’s so bad you can’t focus, can’t concentrate, and causes you energy to deplete such that all you feel like doing is staying in bed all day long?
I wouldn’t wish this type of pain on my worst enemy. Dealing with chronic pain, and treating it are hard enough.
Having to explain your symptoms, along with your daily routine and why you can’t function for an already skeptical insurance adjuster and insurance lawyer are even more difficult.
Making matters even worse is that treating chronic pain isn’t always as simple as taking a pill and hoping that the pain goes away. The wait time to see a chronic pain doctor (commonly referred to as physiatrists, or rheumatologists or some family doctors with special training in chronic pain also qualify) can be over a year.
If you live in a rural community, then finding such a doctor might require travel to a more urban centre. I’ve seen clients from North Eastern Ontario and the Kawarthas travel to Peterborough or to Toronto for treatment. Sometimes they have to travel to Oshawa depending on the availability of doctors.
I’ve had clients from rural parts of southwestern Ontario have to travel to London for treatment. London has a LOT of doctors. That could translate in to hours of driving, for a 5 minute medical appointment.
Some of the common treatments for chronic pain that our law firm sees with clients includes, but is not limited to:
+ Medication (all sorts, all types, and lots of it)
+ Therapy (Physio, massage, Tens, Aquafit, Yoga. The problem with this is that it’s generally NOT covered by OHIP. Thus, you will need to pay for this sort of treatment out of your own pocket. If you don’t have a good private benefit plan in place, or if you aren’t independently wealthy, then paying for this treatment on your own might be out of the question, or becomes very expensive).
+ Lifestyle changes (lose weight, stop smoking, stop drinking, stop using drugs, exercise more)
+ Rest + Injections (B12, Botox, Steriod for pain management. The needles can be intimidating)
+ Counselling (social work, psychologist, therapist, a good person to talk to can help)
The problem with chronic pain is that it’s invisible. Nobody can see it. Nobody can feel it but the person who is suffering.
This is problematic in the course of a legal proceeding because it’s up to the Plaintiff to prove the case. Proving that chronic pain exists and is causing the Plaintiff significant harm is always a tough task.
The Plaintiff lawyer will have to lead medical expert evidence showing that the Plaintiff is in fact suffering from chronic pain. In addition, the Plaintiff will lead evidence from lay witnesses to testify that the Plaintiff is not functioning as they once did and seems to be in constant pain, or complains to them about pain.
If the Plaintiff has been taking a wide variety of medication, then the prescription summary will be an excellent aid at establishing that the Plaintiff is in fact in pain.
The logic for a Court, along with an insurer is that a HEALTHY person does not need to take medication. But, a person who is not healthy, and is in a constant state of chronic pain will NEED to take medication in order to regulate that pain. If the Plaintiff is NOT taking any medication, then their pain is not significant enough to warrant medication and is not significant enough to warrant a large award under the law.
Other insurer/Court logic relates to treatment. Healthy people don’t get treatment for their injuries because they’re healthy. So if somebody who claims to be injured is not getting any treatment for their alleged injuries, then they are perceived to be healthy as well.
Flawed logic? Yes. But that’s how the system works and we have to work within the system.
In litigation, insurance companies are allowed at law to send you to one, or even MORE medical examinations with their hired gun doctors. The role of these doctors is to provide “objective” medical opinions which will be relied on at trial in order to prove their case. These doctors are paid for, and retained by the insurance company. So: do your really think that their opinions are going to be favourable to the accident victim, or favourable to their client, the insurance company.
The Plaintiff lawyer also has the ability to send the accident victim/disability claimant to the medical experts of their choosing. This evens the playing field.
In many chronic pain cases, it comes down to the credibility of the parties, the credibility of the witnesses, along with the battle of the experts. Which doctor is more believable. Because we can’t see the injury on any x-ray, scan or MRI, the credibility and the opinions of these medical experts becomes very important.
Don’t like taking medication? Does the medication make you drowsy? Fine. Then we have to find another way to establish that you’re in pain. Because pain does NOT show on any x-ray report, or MRI or CT Scan.
Pain is entirely subjective. That means that nobody will understand it but you. That means that there’s no objective measure to how pain works.
This is part of the reason why you’re not going to get much sympathy from an insurer about your chronic pain. Primarily because they likely don’t believe you, they don’t believe that you’re in pain; and if they do believe that you’re in pain, then the pain is NOT as bad as you say it is.
Don’t expect to get much sympathy from a jury either. Do you really think that a jury of your peers wants to be sitting around in a Courtroom for a period of 3-6 weeks hearing about your sore back and how it’s impacted your life. The jury would rather be doing a million and one other things at that point in time rather than sit through a chronic pain trial.
It’s your lawyer’s job to make the jury care. It’s your lawyer’s job to make the insurance company, the judge and the jury understand the pain you’re dealing with. It’s your lawyer’s job to tell your story, your struggle and your version of the events in terms of how your life has changed on account of an accident or a disability claim.
That job is not an easy one to do. But if it’s done right, it may reap an excellent award from the Judge and Jury. But trials are like coin flips. You never know the outcome. I
Enough law talk? Sure. Toronto’s baseball team is actually playing some meaningful games in August. This is the first time in over a decade that I can remember Toronto’s professional baseball team playing some meaningful games in a VERY long time. It’s nice to see the city and the nation rally around its baseball time. There’s something very “summery” about baseball that I like. It makes me think of nice weather. Knowing that the long, hard and cold winter is just around the corner, lets hope their little run continues to last. So long as baseball is around in Toronto, the summer, or that summer mindset goes on.
NOTE: Today is the Goldfinger Personal Injury Law staff BBQ which is being held at the Toronto office. If you’re around the Yonge/Sheppard area, come by and say hi as we will be outside between Noon-1 for the BBQ. Rumour has it that there will even be an ICE CREAM TRUCK!